Author Topic: Best move in my situation?  (Read 2689 times)

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kevinmanheim

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Re: Best move in my situation?
« Reply #15 on: July 08, 2014 07:59:51 AM »
what it says is crystal clear.
Draft a MTC arb that makes the judge agree.

It has been done by others on DB.

Bruno the JDB Killer

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Re: Best move in my situation?
« Reply #16 on: July 08, 2014 12:59:05 PM »
It may work if you opened the account in 2005. I just wanted you to be aware of what they will argue, especially if you used the account after the 2010 change.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

jbones27

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Re: Best move in my situation?
« Reply #17 on: July 08, 2014 02:08:24 PM »
Draft a MTC arb that makes the judge agree.

It has been done by others on DB.

I'm on it, the only thing I'm missing are case laws to back up survival language holding when agreements are amended. I'd love it if somebody has an example handy. In the meantime, I'll be searching.

Bruno the JDB Killer

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Re: Best move in my situation?
« Reply #18 on: July 08, 2014 02:26:26 PM »
I've never seen any. This would not be a subject for a stand alone law suit, it would be resolved by motion early on. Your job is to convince the judge that the survivability clause applies.

When was the exact date of default? If it was prior to Jan 2010, the newer agreements would not apply to you. If it was after Jan 2010, your best shot is if you didn't make any charges on the card after that.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

jbones27

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Re: Best move in my situation?
« Reply #19 on: July 08, 2014 02:39:47 PM »
It was after 2010. I'm struggling as to whether I should lay the survival clause out with a few main points or simply reference the location where the clause is located. Obviously the judge isn't stupid and he'll be able to navigate to my reference, but it may be better to take a few sentences from it. This needs to go in pronto.

kevinmanheim

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Re: Best move in my situation?
« Reply #20 on: July 08, 2014 03:01:20 PM »
Never assume a judge will read an exhibit, much less your motion.

Make sure the survival clause is included prominently in your motion. Let C1 argue that they didn't mean what they wrote and mailed to millions of consumers.

Bruno the JDB Killer

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Re: Best move in my situation?
« Reply #21 on: July 08, 2014 03:30:58 PM »
You have to include a copy of the agreement and an affidavit that says it is the controlling agreement. There are some here:

http://www.cardmemberagreements.org/capital-one/
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

jbones27

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Re: Best move in my situation?
« Reply #22 on: July 08, 2014 03:38:25 PM »
Done! I couldn't deal with this everyday...time for a nap or maybe some alcohol after I get done dealing with the clerks office lol.
« Last Edit: July 08, 2014 03:44:39 PM by jbones27 »

howucantoo

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Re: Best move in my situation?
« Reply #23 on: July 08, 2014 03:48:05 PM »
Survivability can be found in this :

"Swanson vs Chase bank ND IL " (attached)
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If you need legal help, you should seek legal counsel.
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jbones27

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Re: Best move in my situation?
« Reply #24 on: July 08, 2014 05:39:31 PM »
Thanks howucantoo, unfortunately too late for me, but I'm sure others that stumble across this thread will benefit.


Ok, so I found out today, MSJ hearing is going to be late August. According to the clerk, I can file an opposition as late as 8 days prior to that. Agree?

If I don't file O-MSJ, what happens with my motion in the system now? Will the judge rule on it first? I put the dates on the back burner while drafting it and now I'm worried that their motion will be heard before mine, effectively killing it. Ugh

JTLoh

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Re: Best move in my situation?
« Reply #25 on: July 08, 2014 06:03:29 PM »
Thanks howucantoo, unfortunately too late for me, but I'm sure others that stumble across this thread will benefit.


Ok, so I found out today, MSJ hearing is going to be late August. According to the clerk, I can file an opposition as late as 8 days prior to that. Agree?

If I don't file O-MSJ, what happens with my motion in the system now? Will the judge rule on it first? I put the dates on the back burner while drafting it and now I'm worried that their motion will be heard before mine, effectively killing it. Ugh

Can't or won't the clerk tell you when the MTC is going to be heard? It should really be heard first as it's a jurisdictional question.

This case may help you if your MTC isn't ruled on and MSJ is granted. (MAKE SURE YOU FIGHT THE MSJ THOUGH!)

Quote from: CAPITAL ONE BANK (USA), N.A. v. COLLINS
By failing to rule on the motion to stay and instead granting the motion for summary judgment, the trial court effectively abrogated Collins' right to appeal any decision on the motion to stay. Therefore, the trial court erred by ruling on the motion for summary judgment before it addressed Collins' repeated motions to stay.

jbones27

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Re: Best move in my situation?
« Reply #26 on: July 12, 2014 12:32:32 AM »
Turns out the MSJ & MTC will be heard the same day  :vbconfused:

That leaves no room for not filing an O-MSJ. Cap1 made an offer to settle in payments for $6k. Should I come back at them with a lump sump proposal? How does $4k sound? I guess paying them anything would reset my credit report accounting, but since they filed suit already it shouldn't matter as far as SOL. Anyway, I think the best move is to settle in one fell swoop if I'm going to settle at all.
« Last Edit: July 12, 2014 02:28:44 AM by jbones27 »

howucantoo

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Re: Best move in my situation?
« Reply #27 on: July 12, 2014 02:00:22 AM »
As above poster suggested MTC must be heard first because it defines jurisdiction. (I'd insist on MTC to be heard first).

After judge rules on MTC then the SJ motion will be moot because court can't decide anything else, it has no jurisdiction.

If you have the lump sum money then negotiate, but I'll start at half of their offer.
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.
My PM is turned off.

JTLoh

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Re: Best move in my situation?
« Reply #28 on: July 12, 2014 12:53:27 PM »
If it were me I would file a motion to continue the MSJ hearing ASAP. Sounds like you have some time.

I would argue (and make sure this is true in your state) that a MTC is a final APPEALABLE order.
And as such the MSJ shouldn't be heard so close to the MTC. You can site the cap1 v collins case and look for other relevant cases in your state.

If paying to settle is an option for you and I don't think it is a bad option considering you are up against the OC and not a JDB. (Never pay a JDB, IMHO) Then I would bring a cashiers check for 3k with me to the MTC hearing and a settlement agreement.

I would wait till after the MTC is ruled on. If I won I would start at offering him 1k to settle. If I lost I would start at 2k. Don't show him the check yet. If they accept or counter for less than 3k, accept and never mention the check. If they counter over 3k, then you counter for 3k and show them the check and say it's cash today! And it's all I can afford. Take it or leave it. If they take it make sure to have that settlement agreement with you and the Judge should sign it that day since you are already in front of him and he would be happy to dispose of your case.

Sometimes seeing the cash will change a persons mind. I bought a car like that once. Had a check for 22,500 with me. Offered less, didn't get it, offered $22,500, they said no way. I pulled out the check and said, $22,500 is my budget and all I can afford and it's a done, cash deal, today if you can take it. They said, Okay we'll take it. Deal done.

Good Luck! Let us know how it goes.

 

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